[Federal Register Volume 70, Number 122 (Monday, June 27, 2005)]
[Rules and Regulations]
[Pages 36812-36814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12620]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 922

[Docket No. FV05-922-1 IFR]


Apricots Grown in Designated Counties in Washington; Decreased 
Assessment Rate

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule decreases the assessment rate established for the 
Washington Apricot Marketing Committee (Committee) for the 2005-2006 
and subsequent fiscal periods from $2.50 per ton to $1.00 per ton of 
fresh apricots handled. The Committee locally administers the marketing 
order which regulates the handling of apricots grown in designated 
counties in Washington. Authorization to assess apricot handlers 
enables the Committee to incur expenses that are reasonable and 
necessary to administer the program. The fiscal period begins April 1 
and ends March 31. The assessment rate will remain in effect 
indefinitely unless modified, suspended or terminated.

DATES: Effective June 28, 2005. Comments received by August 26, 2005, 
will be considered prior to issuance of a final rule.

ADDRESSES: Interested persons are invited to submit written comments 
concerning this rule. Comments must be sent to the Docket Clerk, 
Marketing Order Administration Branch, Fruit and Vegetable Programs, 
AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 
20250-0237; Fax: (202) 720-8938; E-mail: [email protected]; or 
Internet: http://www.regulations.gov. Comments should reference the 
docket number and the date and page number of this issue of the Federal 
Register and will be available for public inspection in the Office of 
the Docket Clerk during regular business hours, or can be viewed at: 
http://www.ams.usda.gov/fv/moab.html.

FOR FURTHER INFORMATION CONTACT: Robert J. Curry, Northwest Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, 1220 SW., Third Avenue, suite 385, 
Portland, OR 97204; telephone: (503) 326-2724, Fax: (503) 326-7440; or 
George J. Kelhart, Technical Advisor, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 
720-2491, Fax: (202) 720-8938.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 
720-2491, Fax: (202) 720-8938, or E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This rule is issued under Marketing 
Agreement and Order No. 922 (7 CFR 922) regulating the handling of 
apricots grown in designated counties in Washington, hereinafter 
referred to as the ``order.'' The order is effective under the 
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), hereinafter referred to as the ``Act.''
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Order 12866.
    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. Under the marketing order now in effect, handlers in 
designated counties in Washington are subject to assessments. Funds to 
administer the order are derived from such assessments. It is intended 
that the assessment rate as issued herein will be applicable to all 
assessable Washington apricots beginning April 1, 2005, and continue 
until amended, suspended, or terminated. This rule will not preempt any 
State or local laws, regulations, or policies, unless they present an 
irreconcilable conflict with this rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. Such 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing USDA would rule on the petition. The Act provides 
that the district court of the United States in any district in which 
the handler is an inhabitant, or has his or her principal place of 
business, has jurisdiction to review USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    This rule decreases the assessment rate established for the 
Committee for the 2005-2006 and subsequent fiscal periods from $2.50 
per ton to $1.00 per ton of fresh Washington apricots handled under the 
order.
    The order provides authority for the Committee, with the approval 
of USDA, to formulate an annual budget of expenses and collect 
assessments from handlers to administer the program. The members of the 
Committee are producers and handlers of Washington apricots. They are 
familiar with the Committee's needs and with the costs for goods and 
services in their local area and are thus in a position to formulate an 
appropriate budget and assessment rate. The assessment rate is 
formulated and discussed at a public meeting. Thus, all directly 
affected persons have an opportunity to participate and provide input.
    For the 2004-2005 and subsequent fiscal periods, the Committee 
recommended, and USDA approved, an assessment rate of $2.50 per ton of 
apricots handled. This assessment rate would continue in effect from 
fiscal period to fiscal period unless modified,

[[Page 36813]]

suspended, or terminated by USDA upon recommendation and information 
submitted by the Committee or other information available to USDA.
    The Committee met on May 10, 2005, and unanimously recommended 
2005-2006 expenditures of $10,594--the same as last year's approved 
expenditures--and a decreased assessment rate of $1.00 per ton of 
apricots handled. The $1.00 assessment rate is $1.50 lower than the 
rate approved for the 2004-2005 and subsequent fiscal periods. Based on 
the Committee's 2005-2006 crop estimate of 3,800 tons, assessment 
income should approximate $3,800. The Committee recommended the lower 
assessment rate taking into account the anticipated crop shortfall on 
the industry, while also reducing the Committee's authorized monetary 
reserve to a level commensurate with program requirements. The 
anticipated $3,800 assessment revenue, when combined with $6,794 from 
the monetary reserves, is adequate to cover budgeted expenses for the 
2005-2006 fiscal period. By drawing funds from the reserve (currently 
$13,962), the Committee estimates that by the end of the current fiscal 
period the reserve will approximate $7,168. This amount is within the 
maximum permitted by the order of approximately one fiscal period's 
operational expenses (Sec.  922.42).
    The major expenditures recommended by the Committee for the 2005-
2006 fiscal period include staff salaries ($5,892), rent and 
maintenance ($864), compliance ($100), and Committee travel and 
compensation ($1,000). These budgeted expenses are the same as those 
approved for the 2004-2005 fiscal period.
    The assessment rate established in this rule will continue in 
effect indefinitely unless modified, suspended, or terminated by USDA 
upon recommendation and information submitted by the Committees or 
other available information.
    Although this assessment rate is effective for an indefinite 
period, the Committee will continue to meet prior to or during each 
fiscal period to recommend a budget of expenses and consider 
recommendations for modification of the assessment rate. The dates and 
times of the Committee's meetings are available from the Committee or 
USDA. The Committee's meetings are open to the public and interested 
persons may express their views at these meetings. USDA will evaluate 
the Committee's recommendations and other available information to 
determine whether modification of the assessment rate is needed. 
Further rulemaking will be undertaken as necessary. The Committee's 
2005-2006 budget and those for subsequent fiscal periods will be 
reviewed and, as appropriate, approved by USDA.

Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this rule on small entities. Accordingly, AMS has 
prepared this initial regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are approximately 272 apricot producers within the regulated 
production area and approximately 28 regulated handlers. Small 
agricultural producers are defined by the Small Business Administration 
(13 CFR 121.201) as those having annual receipts of less than $750,000, 
and small agricultural service firms are defined as those whose annual 
receipts are less than $6,000,000.
    For the 2004 apricot season, Washington Agricultural Statistics 
Service reported that the total 6,400 ton apricot utilization sold for 
an average of $973 per ton. Based on the number of producers in the 
production area (272), the average annual producer revenue from the 
sale of apricots in 2004 can thus be estimated at approximately 
$22,894. In addition, based on information from the Committee and 
USDA's Market News Service, 2004 f.o.b. prices ranged from $14.50 to 
$18.50 per 24-pound loose-pack container, and from $18.00 to $24.00 for 
2-layer tray pack containers. With about half of the 2004 season fresh 
apricot pack-out of 4,911 tons in loose-pack containers and about half 
in tray-pack containers (weighing an average of about 20 pounds each), 
each of the industry's 28 handlers would have averaged less than 
$225,000 from the sale of fresh apricots. Thus, the majority of 
producers and handlers of Washington apricots may be classified as 
small entities.
    This rule decreases the assessment rate established for the 
Committee and collected from handlers for the 2005-2006 and subsequent 
fiscal periods from $2.50 to $1.00 per ton of fresh apricots handled. 
The Committee unanimously recommended 2005-2006 expenditures of 
$10,594. With the 2005-2006 crop estimate of 3,800 tons, the Committee 
anticipates assessment income of $3,800, which, when combined with 
$6,794 from the monetary reserves, will be adequate to cover budgeted 
expenses for the 2005-2006 fiscal period. At this assessment rate and 
expense level, the Committee's reserve fund will approximate $7,168 by 
March 30, 2006. This amount is within the maximum permitted by the 
order of approximately one fiscal period's operational expenses (Sec.  
922.42).
    The Committee discussed alternatives to this rule, including 
alternative expenditure levels. Lower assessment rates were considered, 
but not recommended because they would not generate the income 
necessary to administer the programs.
    A review of historical information and preliminary information 
pertaining to the upcoming crop year indicates that the producer price 
for the 2005-2006 season could range from about $973 per ton to about 
$1,100 per ton for Washington apricots. Therefore, the estimated 
assessment revenue for the 2005-2006 fiscal period as a percentage of 
total producer revenue could range between 0.09 and 0.10 percent.
    This action decreases the assessment obligation imposed on 
handlers. Assessments are applied uniformly on all handlers, and some 
of the costs may be passed on to producers. However, decreasing the 
assessment rate reduces the burden on handlers, and may reduce the 
burden on producers. In addition, the Committee's meeting was widely 
publicized throughout the Washington apricot industries and all 
interested persons were invited to attend and participate in the 
Committee's deliberations on all issues. Like all marketing order 
committee meetings, the May 10, 2005, meeting was a public meeting and 
all entities, both large and small, were able to express views on the 
issues. Finally, interested persons are invited to submit information 
on the regulatory and informational impacts of this action on small 
businesses.
    This action imposes no additional reporting or recordkeeping 
requirements on either small or large Washington apricot handlers. As 
with all Federal marketing order programs, reports and forms are 
periodically reviewed to reduce information requirements and 
duplication by industry and public sector agencies.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap, or conflict with this rule.

[[Page 36814]]

    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ama.usda.gov/fv/moab.html. Any questions about the compliance 
guide should be sent to Jay Guerber at the previously mentioned address 
in the FOR FURTHER INFORMATION CONTACT section.
    After consideration of all relevant material presented, including 
the information and recommendation submitted by the Committee and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined upon good 
cause that it is impracticable, unnecessary, and contrary to the public 
interest to give preliminary notice prior to putting this rule into 
effect, and that good cause exists for not postponing the effective 
date of this rule until 30 days after publication in the Federal 
Register because: (1) The 2005-2006 fiscal period began on April 1, 
2005, and the order requires that the rate of assessment apply to all 
assessable Washington apricots handled during such fiscal period; (2) 
this action reduces the assessment rate; (3) handlers are aware of this 
action which was unanimously recommended at a public meeting and is 
similar to other assessment rate actions issued in past years; and (4) 
this interim final rule provides a 60-day comment period, and all 
comments timely received will be considered prior to finalization of 
this rule.

List of Subjects in 7 CFR Part 922

    Apricots, Marketing agreements, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, 7 CFR part 922 is amended as 
follows:

PART 922--APRICOTS GROWN IN DESIGNATED COUNTIES IN WASHINGTON

0
1. The authority citation for 7 CFR part 922 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.


0
2. Section 922.235 is revised to read as follows:


Sec.  922.235  Assessment rate.

    On or after April 1, 2005, an assessment rate of $1.00 per ton is 
established for the Washington Apricot Marketing Committee.

    Dated: June 20, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-12620 Filed 6-24-05; 8:45 am]
BILLING CODE 3410-02-P